8:50 AM, May 8, 2014

Nolan, 5, left, poses with April DeBoer, 42, Jacob, 5, Ryanne, 5, and Jayne Rowse, 49. DeBoer and Rowse won the overturning of a 2004 law that prohibits same-sex couples from marrying in the state. / File photo by Mandi Wright/Detroit Free Press

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Attorney General Bill Schuette argued that while many states have legalized same-sex marriages, more have chosen not to do so. / Greg DeRuiter/LANSING STATE JOURNAL

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Attorney General Bill Schuette hopes the appeals court uses the same reasoning when deciding Michigan’s same-sex marriage case as the U.S. Supreme Court used when upholding Michigan’s voter-approved ban on affirmative action policies used by the state’s universities.

In a brief filed in the U.S. 6th Circuit Court of Appeals Wednesday evening, Schuette repeatedly brought up the Supreme Court’s ruling that Michigan voters had the right to ban universities from using affirmative action in admissions decisions. The same should hold true for the same-sex marriage case because Michigan residents voted in 2004 to define marriage as between one man and one woman.

“As Justice Kennedy recently explained, (in the affirmative action case) “[i]t is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds,” Schuette wrote in his appeal of a ruling in March by U.S. District Judge Bernard Friedman that Michigan’s ban on same-sex marriage is unconstitutional violation of equal protection rights. “Democracy does not presume that some subjects are either too divisive or too profound for public debate.”

The case doesn’t revolve around approving or disapproving of same-sex relationships or a gay couple’s ability to raise a child, Schuette said in the appeal brief.

“As a society, we wish that all children had loving parents, no matter what their sexual orientation may be,” he wrote. “This appeal is also not about whether there is a fundamental right to same-sex marriage. The district court did not reach that issue, correctly recognizing that marriage is a topic left to the people to decide at the ballot box. Out of respect for democracy and to be consistent with the restrained and limited role of a federal court judging the rationality of a legislative choice left to the people, this Court should reverse.”

The case revolves around April DeBoer and Jayne Rowse, a same-sex couple who fought for the right to marry and adopt each other’s children. Friedman ruled that even though state voters decided by a 59%-41% margin in 2004 that same sex marriages were prohibited, that ban violated the couple’s rights under the equal-protection clause of the U.S. Constitution.

After his ruling on March 22, clerks in Ingham, Oakland, Muskegon and Washtenaw counties issued more than 300 marriage licenses before a stay was put on Friedman’s ruling. The marriages performed that Saturday are now in a legal limbo.

While many states have legalized same-sex marriages, more have chosen not to, Schuette said.

“If the people of a State choose, as the people of 33 states including Michigan have, to retain the definition of marriage they have always recognized, so that marriage is a union of one man and one woman, their decision is also entitled to respect,” he said.

The plaintiffs in the case have until early June to file their response to Schuette’s brief. Most leagal experts expect the issue of same-sex marriage to end up before the U.S. Supreme Court, perhaps as soon as later this year.